SHOULD WE TRY A TEMPORARY SEPARATION? 3 RISKS YOU MAY NOT HAVE ANTICIPATED

By Jennifer Paine of Pinnacle Family Law on Tuesday, July 11, 2017.

If you're thinking about a temporary separation, to see if your marriage is reconcilable, then you've probably read our articles about the risks. On the one hand, a temporary separation allows you and your spouse some space to think about what you each truly want out of your marriage. On the other hand, a temporary separation can easily transform into a new, and bad, status quo, one in which you have doubled your living expenses and have removed yourself from your children, if you have them, and/or have set a pattern of supporting your soon-to-be-ex. While they may be helpful for the short run, every day must bring the two of you closer together or further apart -otherwise, the risks of confusing your children, establishing a support pattern and setting expectations that you will be the secondary, or "visiting," parent take over.

Those are the most obvious risks, but there are less obvious, but just as common, risks, too:

Accumulating Assets - While you are separated, you should assume that any asset you and/or your spouse acquire, except some gifts and entirely segregated inheritances, are marital property to be divided equally between the two of you. This means, the furniture you bought to outfit your new place, your new TV, your contributions to your 401k, your interests in your pension, and so forth, are eligible for division - even after, in most states, a lengthy separation. This rule is not intuitive because most spouses will expect that their property rights were defined at the time they separated, since their decision to divorce is, in their minds, really an extension of their decision to separate. However, in most states, the rule is property is to be divided if it came to be between the date of the marriage and the date of the divorce, NOT the date of separation. While some states allow judges to fix the date at an earlier date, such as the date of separation or some date in between when it became clear the couple would not reconcile, this is but an exception to the rule. What's worse - if you stop contributions toward your retirement to get around this rule, most states will treat your actions as "in anticipation of divorce" and will divide your retirement as if you had made those contributions. The best approach, therefore, is to make the separation short and decide soon whether to reconcile or file for divorce.

Unanticipated Debts - Similarly, in most states, the debts either you or your spouse acquire are still considered marital debts to be divided between the two of you as of the date of divorce - again, not as of the date of separation. This may be intuitive for debts like the credit card the two of you have been using for gas, a medical expense for your child, or the home mortgage, but what about anticipated debts like a home repair while your spouse has resided in the home or a vehicle repair that went on a credit card or credit card spending your spouse claims is "all for the family" but you cannot track? Yes, in most states these too would be marital debt. While some states allow judges to fix the date to divide debts as of some other date, and to identify some debts as "purely personal" (after your time and money spent explaining to the judge why), this too is the exception and not the rule. You should assume that any debts your spouse acquires while you are separated from her are one-half yours.

Tax Filing Status - Unfortunately, these unanticipated consequences can, and often do, carry over to tax season. There is no rule that spouses must file their federal tax return with the status "married, filing jointly," which is, generally, the most preferred tax filing status. Rather, either spouse may file with the status "married, filing separately" and take advantage of his or her own deductions, exemptions and refunds. If you and your spouse are not on speaking terms, you may no discover this separate filing until you file your return - long after he or she has claimed items for the home, and the children, and long after spending your refund.

Then what are you to do if you and your spouse still intend to separate temporarily? First, establish a firm deadline for the separation - a month, two, etc. - at which time you will either reconcile or one of you will file for divorce. The longer your separation goes, the greater these risks grow. Second, consider a separation agreement. In some states, judges will enforce these as contracts, and in a minority they will not, but, either way, you and your spouse have set forth your expectations. (If you do not believe she will honor them, that is another sign you should file for divorce.)

Most of all, exercise caution every day of your separation - assume your assets during that time are one-half your spouse's, her debts are one-half yours and taxes will be in-issue, and decide relatively soon to file for divorce if every day you are not growing closer together as a couple.

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